This Day in Supreme Court History (Webster, Marshall Save ‘A Small College’—and the Private Realm in America)

Feb. 2, 1819—In one of the central cases advancing John Marshall’s concept of a republic in which contracts would create a diverse economy that would bind the nation together, the Supreme Court ruled 5-1 in favor of the trustees of a then-small New England college and the eloquent alumnus arguing its case, Daniel Webster.

At first glance, the case, Trustees of Dartmouth College v. Woodward, might seem highly technical: whether the legislature of New Hampshire, in seeking to convert Dartmouth College from a privately funded institution to a public university, had violated the Constitution’s Contract Clause (Article 1, Section 10, Clause 1), which prohibits states from violating contracts with private or public corporations.

But Marshall (pictured here) saw matters more broadly. If the state could abrogate the terms of a private contract—even a charter such as Dartmouth’s granted in 1769, when New Hampshire was still a colony under British rule—then it could interfere in the operations of charities and, by extension, Americans’ private lives.

“The Dartmouth College case established an important safeguard for charitable institutions in the United States,” writes Justin Zaremby in the February 2019 issue of The New Criterion:

“The Court held that while privately run institutions may engage in activities that are within the purview of government, government could not by right assume control. It affirmed the role of charities (and their donors) in shaping America’s educational, literary, and cultural life, and over time the number and impact of such organizations grew.”

Only two decades later, Alexis de Tocqueville, in his classic political study Democracy in America, marveled at the strength and variety of these private activities in the U.S.:

"Nothing, in my opinion, is more deserving of our attention than the intellectual and moral associations of America. The political and industrial associations of that country strike us forcibly; but the others elude our observation, or if we discover them, we understand them imperfectly because we have hardly ever seen anything of the kind.”

But in another sense, Marshall opened the door to a constitutional interpretation that others would push far more aggressively. In holding for the trustees of Dartmouth College, he stated that a corporation was "an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence." 

In the 1880s, former Senator Roscoe Conkling of New York took this a step further in arguing before the Supreme Court: a corporation was not just "an artificial being" but a person, thus entitled to protection under the post-Civil War 14th Amendment. The high court adopted that proposition, producing a situation far from "originalist" (to use Antonin Scalia's term) in its basis: a constitutional  amendment adopted was a dead letter for the group it was intended to protect--African-Americans--but a boon for one not contemplated: robber barons.

(Indeed, the "Two Centuries of Corporate Personhood" that ensued from the decision was hailed in an op-ed piece in this Friday's Wall Street Journal by Carson Holloway, a visiting scholar at the conservative Heritage Foundation and a professor of political science science at the University of Nebraska Omaha.)

In more personal terms, Trustees of Dartmouth College v. Woodward enabled the two figures most essential to its outcome—the justice hearing the case and the lawyer who successfully pleaded it—to stake out a continuing important role in the nation’s affairs, even after the Federalist Party to which they had once belonged had self-destructed at the end of the War of 1812 through secessionist mutterings.

Following the collapse of the Federalist Party, Marshall, as Chief Justice of the Supreme Court, was the last party member in any major leadership post in Washington. With the capital not yet rebuilt after the British burning of the city in the war, he and his fellow justices were operating out of what an observer of the Dartmouth case, Chauncey Goodrich of Yale College, called “a mean apartment of moderate size.”

If Thomas Jefferson and his two Democratic-Republican successors, James Madison and James Monroe, had had their way, Marshall would have been lucky to have even that cubbyhole. Armed only with his incisive intellect and an easygoing, egalitarian manner, Marshall had somehow still managed to carry the day with sizable majorities, as he often managed to persuade justices appointed by the other party to join his cause.

Likewise fighting a rear-guard action against the Democratic-Republicans, Webster was also struggling to maintain his viability against his old foes. A couple of years before, he had left the House of Representatives—and the state of New Hampshire—to start a thriving legal practice in Boston, Mass.

From 1814 to 1852, “Black Dan” (a reference to his commanding dark looks) argued 168 cases before the Supreme Court. In the process, argued historian Merrill Peterson in The Great Triumvirate, “Webster turned ordinary law cases into vehicles of statesmanship with profound effects. The unique right of judicial tribunals to decide constitutional questions, enabling the humblest citizen in the humblest case to appeal to the supreme law, widened the scope of American law and invested it with the utmost dignity of state.”

The Dartmouth case, together with another he argued successfully before the court that year, McCulloch v. Maryland, allowed Webster to form a reputation as “defender of the Constitution”—and win election as U.S Senator from his new state. (His formidable reputation as a legal advocate would be memorably evoked a century later in Stephen Vincent Benet's much-anthologized short story "The Devil and Daniel Webster," in which the great man pulls off the neat trick of saving a poor farmer who had sold his soul to Ol' Scratch.

Oddly enough, Webster felt the conclusion to his four-hour argument in the Dartmouth case was so mawkish that he deleted it when he had copies printed. It has only been saved for posterity through Professor Goodrich, who published it after Webster’s death in 1852. These sentences, directed squarely at Marshall, moved the justice to tears and have become famous since then:

“Sir, you may destroy this little Institution; it is weak, it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out! But, if you do so, you must carry through your work! You must extinguish, one after another, all those greater lights of science which, for more than a century, have thrown their radiance over our land! It is, Sir, as I have said, a small College. And yet there are those who love it.”

This Day in Supreme Court History (Brandeis Confirmed After Epic Nomination Fight)

June 1, 1916— Louis D. Brandeis, the first Jewish nominee to the U.S. Supreme Court, was confirmed by the Senate a record 125 days—including 19 public hearings—after being chosen by a liberal Democratic President. His nomination as Associate Justice led to unseemly opposition by mainstream conservatives who only embarrassed themselves in the process.

In other words, it sounds an awful lot like what Merrick Garland faces now after being chosen by Barack Obama to fill the vacancy left by Antonin Scalia.

Brandeis broke with tradition in another sense, too. Custom called for Supreme Court nominees to remain above the fray in confirmation battles.  However, while observing the letter of this “law” by refraining from public comment (he also could not, as he was not invited to counter scurrilous accusations against him before the Senate Judiciary Committee), the nominee worked tirelessly behind the scenes to combat the wild things being said  against him.

Like Thurgood Marshall, another trail-blazer for a minority group a generation later, Brandeis would have been considered a major influence on the court even if he had never served on it. Just as Marshall conceived the incremental but relentless legal strategy that overturned school segregation in Brown v. the Board of Topeka, Kansas, Brandeis pioneered succinct reports that summarized scientific and sociological data in his so-called “Brandeis Brief.”

At the same time, the lawyer was one of the key voices at the turn of the century pointing out the dangers of inequality, opposing the vested interests of the time—insurance companies, powerful public utilities, and banks—and writing a book whose title resonates even more than ever before: Other People’s Money and How the Bankers Use It.

Brandeis became a key adviser to President Woodrow Wilson on the proper relations between capital and labor. His pronounced preference for the latter made him a number of enemies, including businessmen and lawyers who loathed and feared his highly effective, full-throated advocacy. 

Henry Lee Higginson, head of the most powerful banking house in Boston, helped bankroll the opposition, as he had done in derailing Brandeis’ appointment to Wilson’s Cabinet. Several former American Bar Association Presidents, including Elihu Root, recently Secretary of War and Secretary of State, stated, preposterously and hysterically, in a letter of protest to the Senate Judiciary Committee, that Brandeis would not be ”a fit person to be a member of the Supreme Court of the United States.” A. Lawrence Lowell, Harvard University’s anti-Semitic President, also opposed the nomination, gathering a petition with over 50 signatures with some of the legendary blueblood surnames of the Massachusetts establishment: Adams, Sargent, Gardner, Peabody, Shattuck, and Coolidge.

Perhaps the most fascinating player among the opponents was the Republican Senator from Massachusetts, Henry Cabot Lodge. He was every bit as appalled at the nomination—and maybe even more determined to strike a blow at Wilson—as the other critics of the appointment. But he found it unsafe to lead the opposition openly, the way he would only a few years later when he battled the President over the Treaty of Versailles and American entry into the League of Nations.

Lodge saw 1916 as an uncertain, even perilous election year—the first time he would undergo direct election by voters rather than by the state legislature since passage of the Seventeenth Amendment a few years before. He already—correctly—feared that he would lose the vote of Irish-Catholics in the state. He could not afford to arouse the ire of Jewish voters as well. 

Thus, Lodge decided not to invoke the custom of senatorial courtesy—the unofficial rule of refusing to confirm a presidential appointment of an official in or from a state when the appointment is opposed by a Senator from that state--and derail the confirmation process before it had fairly begun, choosing instead to work more behind the scenes.

Once on the court, Brandeis was not done dealing with anti-Semitism. Another Wilson appointee, James McReynolds, slighted him not only by refusing to shake his hand but also by shirking court photo sessions where he knew Brandeis would appear. 

But Brandeis did convert one prominent detractor while on the high court: former President William Howard Taft, who had helped other Republicans in the battle against a nominee he viewed as “a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealously, a hypocrite . . . who is utterly unscrupulous . . . a man of infinite cunning . . . of great tenacity of purpose, and, in my judgment, of much power for evil.”

But Taft’s innate amiability surfaced when the two men finally got to work together on the court when the ex-President achieved his lifelong ambition by being appointed Chief Justice by Warren Harding. Taft wrote his daughter Helen about his old rival: “I have come to like Brandeis very much indeed . . . he is a very hard worker . . . He thinks much of the Court and is anxious to have it consistent and strong, and he pulls his weight in the boat.”

For those who, unlike Taft, actually agreed with his ideology, feelings toward Brandeis went well beyond respect to something close to veneration. From Franklin Roosevelt, so often in despair over the hidebound prejudices of the majority on the court in his first term, Brandeis won the nickname “Isaiah”—a tribute to his wisdom, and his prophetic role in ameliorating the worst excesses of an industrial economy.

 
But, for all the justice's subsequent acclaim, the confirmation fight exposed some of the ugliest nativist strains in American life--instincts that persisted in the past two Presidential contests, in which the winner was suspected of being a Muslim and a non-citizen, and even into the current contest, in which the presumptive nominee of the Republicans broadcast claims that two primary opponents also were not citizens.

Brandeis was nominated only months after a Jewish factory owner, Leo Frank, was lynched for a murder he did not commit. Animated by anti-Semitism, many of his critics accused him, without a scrap of evidence, of not supporting the "written Constitution," a claim that bigots could use as a fig leaf for their own ill-concealed hatred.

Garland runs a fair chance of having his path to the court obstructed even more mulishly than Brandeis. Unlike 1916, the Democrats do not control the Senate and cannot bring the nomination to a vote by themselves. They cannot place faith in the majority's good will, only in its realism--if the Republicans sense their Presidential nominee is doomed to defeat, and that they'd better confirm Garland lest Obama's successor choose a far more liberal nominee.

(To gauge how, the current Senate Republicans’ protests notwithstanding, the current refusal not to accord Garland a hearing is so unprecedented in its obstruction, please see this piece from the Huffington Post by Paul Finkelman.)

 

(The accompanying photograph of Justice Brandeis, ca. 1916, by Harris and Ewing, comes from the Library of Congress Prints and Photographs Division.)